dismissed EB-1C Case: Real Estate Development

U.S. Department of Homeland Security 
U. S. citizens hi^ and Immination Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
OFFICE: NEBRASKA SERVICE CENTER Date: MAR 3 1 2o09 
LIN 07 254 52484 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
un F. Grissorn 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a California corporation engaged in real estate development and leasing. The 
petitioner seeks to employ the beneficiary as its president and chief executive officer. Accordingly, 
the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to 
section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(C), as 
a multinational executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner 
failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; and 2) the petitioner failed to establish that it would employ the beneficiary in a managerial 
or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of her 
assertions. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding the 
time of the alien's application for classification and admission into the 
United States under this subparagraph, has been employed for at least 
1 year by a firm or corporation or other legal entity or an affiliate or 
subsidiary thereof and who seeks to enter the United States in order to 
continue to render services to the same employer or to a subsidiary or 
affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate or 
subsidiary of that entity, and who are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under 
section 203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is 
required for this classification. The prospective employer in the United States must furnish a job 
offer in the form of a statement which indicates that the alien is to be employed in the United States 
in a managerial or executive capacity. Such a statement must clearly describe the duties to be 
performed by the alien. 
Page 3 
The two primary issues in this proceeding call for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the beneficiary was employed 
abroad and whether he would be employed in the United States in a qualifying managerial or 
executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. tj 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor 
is not considered to be acting in a managerial capacity merely by 
virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. $ 1 101 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or 
function of the organization; 
(ii) 
 establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
Page 4 
In support of the Form 1-140, the petitioner submitted a letter dated July 24, 2007, which included a 
description of the beneficiary's proposed employment. As the director has incorporated the 
beneficiary's proposed job duties into the denial, the AAO need not repeat this information in the 
current decision. With regard to the beneficiary's position with the foreign entity, the petitioner 
referred to the beneficiary's job duties as executive and managerial and stated that the beneficiary 
exercised wide latitude in discretionary decision-making, including hiring, firing, and promoting 
employees. The following list of duties was provided: 
Developing policies and procedures to start up operations; 
Negotiating contracts on behalf of the company; 
Developing all marketing and sales policies; 
Developing policies in order to coordinate functions and operations between the 
divisions and departments of [the foreign entity] as well as the operations between 
the company and its affiliate companies; 
Reviewing activity reports and financial statements to determine the progress and 
status of [the foreign entity] in attaining the set goals and objectives for the 
company; 
Directing the revisions of the previously set objectives and plans in accordance with 
the current market and conditions; 
Directing and coordinating any financial programs for new and continuing 
operations and to maximize the company's return on investments; and 
Planning and developing public relations policies and goals to improve the 
company's image and relations with customers, employees and the general public. 
It is noted that in the conclusion portion of the above support letter, the petitioner stated that the 
beneficiary was employed abroad in an executive capacity. In light of the petitioner's earlier 
reference to the above list of duties as both managerial and executive, there is considerable 
confusion as to the beneficiary's employment capacity. A beneficiary may not claim to be employed 
as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. If the 
petitioner chooses to represent the beneficiary as both an executive and a manager, it must establish 
that the beneficiary meets each of the four criteria set forth in the statutory definition for executive 
and the statutory definition for manager. 
On September 24, 2007, the director issued a request for additional evidence (WE) instructing the 
petitioner to provide further documentation establishing that the beneficiary was employed abroad 
and would be employed by the U.S. entity in a qualifying managerial or executive capacity. 
Specifically, with regard to the beneficiary's foreign position, the petitioner was asked to provide a 
detailed description of the beneficiary's past job duties, including the percentage of time spent 
Page 5 
performing each job duty. The director asked the petitioner how many employees the beneficiary 
supervised and instructed the petitioner to provide the respective employees' job titles and job duties. 
With regard to the beneficiary's proposed position, the director requested a copy of the latest Form 
W-2 for each employee the beneficiary would supervise, specifying that the petitioner must establish 
that the duties of such subordinates correspond with their respective placement within the petitioner's 
organizational hierarchy. 
In response, the petitioner provided a letter dated November 2, 2007, stating that the beneficiary was 
employed abroad in the position of CEO. The following job duties were attributed to this position: 
Developed policies and procedures for start[-]up operations and new ventures - 
15% of time; 
Negotiated contracts for the purchase and development of projects on behalf of the 
company - 20% of time; 
Developed all marketing policies for company-owned operations - 10% of time; 
Developed policies and procedures pertaining to functions and operations between 
the divisions and departments of [the foreign entity] as well as the operations 
between the company and its affiliated companies - 20% of time; 
Reviewed activity reports and financial statements of various projects and 
properties to determine whether the company is achieving its said goals and 
objectives - 15% of time; 
Directed the revisions of the previously set objectives and plans in accordance with 
market conditions - 5% of time; 
Directed and coordinated financial programs for new and continuing operations in 
regards [sic] to the company's return on investments - 10% of time; 
Planned and developed public relations policies and goals to improve the company's 
image and relations with customers, employees and the general public - 5% of time. 
The petitioner also provided the following sample daily schedule of the beneficiary's activities with 
the foreign entity: 
Reviewing activities of different departments to ensure daily targets are being met; 
Meeting with managers of [the] company's departments to ensure that the different 
projects are being run smoothly; 
Ensure that standards, goals and deadlines for production and/or services provided 
by outside contractors . . . are being met; 
Page 6 
Liaise with clients and vendors to determine whether their needs are being met . . . ; 
Reviewing proposed marketing materials and advertisements and deciding avenues 
to promote the company and enhance its business; 
Analyzing budget requests to identify areas in which reductions can be made, and 
allocate operating funds as needed on a daily basis; 
Manage financial transactions and determine prices, payments and contractual 
negotiations . . . ; 
Confer with personnel and review activity, operating, and sales reports to determine 
changes in programs or operations required; 
Oversee and direct the production of all reports; 
Determine whether the reporting requirements are adequate and determine on what 
basis the different departments must make reports to him; 
Direct and coordinate operational and functional changes that are required within 
the business in order to promote profitable expansion and growth; 
Identify personnel needs, as well as hire and fire. 
The petitioner also provided a list of nine employees whom the beneficiary purportedly supervised 
during his employment abroad. However, only one employee's statement of remuneration was 
provided to establish his employment with the foreign entity. 
With regard to the beneficiary's proposed employment, the petitioner stated that the beneficiary 
directs and oversees professional subordinates, staff, and independent contractors in conjunction 
with managing the entire organization. The petitioner also provided 2005 and 2006 Form W-2 wage 
and tax statements for (the beneficiary's immediate subordinate) as well as a list of 
independent contractors the petitioner claims to have used in its real estate development projects. 
On December 17, 2007, the director issued a denial of the petition, finding that the petitioner failed 
to establish that the beneficiary was employed abroad and that he would be employed in the United 
States in a qualifying managerial or executive capacity. The director commented on the petitioner's 
submission of documents establishing that the beneficiary supervised and would supervise a single 
subordinate employee. This observation led the director to conclude that the beneficiary would not 
have been spending the primary portion of his time performing tasks within a qualifying capacity. 
The director also observed that the petitioner failed to establish the existence of a subordinate staff 
capable of relieving the beneficiary from having to primarily perform daily operational tasks, which 
led to the conclusion that the beneficiary would not be employed in a qualifying capacity. 
On appeal, counsel points to portions of the statutory definition for managerial capacity that were 
cited in the director's decision, asserting that the director failed to address the petitioner's original 
claim, i.e., that the beneficiary would be employed in an executive capacity. However, a thorough 
review of the director's decision indicates that counsel's argument is without merit. 
While the director's decision contains references to section 101 (a)(44)(A) of the Act, which defines 
managerial capacity, the decision gives equal consideration to the beneficiary's job description in 
light of section 101(a)(44)(B) of the Act, which defines executive capacity. In the present matter, 
the director clearly references aspects of both statutory definitions, thereby indicating that even if the 
beneficiary were to qualify under a statutory definition that was not claimed by the petitioner that 
this would not disqualify the beneficiary from classification as a multinational manager or executive 
under the relevant section of the Act. 
Counsel also asserts that the petitioner provided a very detailed description of the beneficiary's 
foreign and proposed employment and further claims that the lists of employees, organizational 
charts, and documentation of independent contractors substantiate the petitioner's claims. However, 
after a thorough review of the record, the AAO finds that counsel's assertions are not corroborated.' 
First, the AAO finds that the job descriptions of the beneficiary's foreign and U.S. employment, 
despite the percentages of time and the sample daily schedules provided by the petitioner, are overly 
broad and fail to convey a meaningful understanding of the specific tasks the beneficiary performed 
abroad and would perform during his proposed employment in the United States. While both job 
descriptions similarly stress the beneficiary's role in developing the policies of each entity, the 
petitioner has provided no clarification as to the specific tasks underlying this broad job 
responsibility. In other words, the petitioner has failed to establish what actions the beneficiary has 
undertaken and would undertake in the context of a real estate development business to develop 
policies concerning new ventures, marketing and sales, and the coordination of functions and 
operations between divisions and departments. The latter aspect is particularly troublesome in the 
context of the petitioning entity, which appears to lack organizational complexity and does not have 
divisions or departments. The AAO is equally perplexed as to each company's need to have the 
beneficiary revise previously set objectives and what specific tasks have been and would be entailed 
in accomplishing this broad job responsibility. Further, there is no indication as to how the 
beneficiary develops public relations policies to benefit its customers and the public at large, nor has 
any explanation been provided as to how discretionary decision-making qualifies as a specific task 
rather than an exercise of authority that is inherent to the beneficiary's top role within the foreign and 
U.S. organizations. 
Although the petitioner provided a sample daily schedule for each of the beneficiary's positions, the 
information provided therein also lacked sufficient clarity and detailed information regarding the 
specific tasks the beneficiary performed and would perform on a daily basis. Moreover,' the sample 
schedule of the beneficiary's proposed position is particularly questionable, as it appears to take no 
account of the nature of the petitioner's business and the petitioner's overall organizational structure 
I 
 See Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter 
of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980), establishing that the unsupported assertions of counsel do not 
constitute evidence. 
Page 8 
at the time of filing. For instance, the schedule indicates that the beneficiary would meet with 
department managers. However, as discussed above, the record lacks documentation to establish 
that the petitioner employed sufficient personnel to subdivide into departments. The same schedule 
also states that the beneficiary would meet with major accounts to review production samples and 
finalize catalog items. However, it is unclear what production samples are created and what catalog 
items are relevant in the scheme of a real estate development business. Lastly, the schedule repeats 
several times that the beneficiary would meet with account executives and customer service 
representatives. However, it is unclear how this task can be classified as qualifying and why the 
petitioner paraphrases this task three separate times. It is noted that an employee who "primarily" 
performs the tasks necessary to produce a product or to provide services is not considered to be 
"primarily" employed in a managerial or executive capacity. See sections 10 1 (a)(44)(A) and (B) of 
the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
Although the sample schedule of the foreign employment is different from the schedule of the 
proposed employment, it also fails to provide sufficient clarity as to the specific tasks the beneficiary 
performed on a daily basis. It is noted that reciting the beneficiary's vague job responsibilities or 
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the 
beneficiary's daily job duties. Precedent case law further confirms that the actual duties themselves 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). In the present matter, the sample schedule of 
the beneficiary's position abroad indicates that the beneficiary managed financial transactions, 
supervised and directed the production of all reports, and directed and coordinated operational and 
functional changes. However, much like the percentage breakdown of the beneficiary's foreign 
employment, these general job responsibilities fail to convey an understanding of the specific 
underlying tasks, which are necessary to determine the beneficiary's employment capacity. The 
schedule also indicates that the beneficiary reviewed activities of different departments, met with 
department managers, and conferred with personnel. However, the foreign entity's organizational 
chart shows that the beneficiary's direct subordinate, the executive director, was directly in charge of 
overseeing the work of the company's personnel. It is unclear what role the executive director 
played if the beneficiary was actually overseeing the company's personnel. Moreover, the claim that 
the beneficiary was overseeing the foreign entity's personnel is inconsistent with the information 
conveyed in the foreign entity's organizational chart, which suggests that the executive director, not 
the beneficiary, was primarily overseeing the work of the company's personnel. It is also unclear 
how identifying personnel needs and hiring and firing personnel is an aspect of the beneficiary's 
daily schedule. While a top executive may be called upon to address various personnel issues 
occasionally, it is unclear why he would be called upon to do so as a regular part of his daily 
schedule. 
In light of the above, the AAO finds that the petitioner failed to provide adequate job descriptions 
delineating the specific tasks the beneficiary performed during his foreign and proposed 
employment. 
Next, the AAO will address each entity's organizational hierarchies. In the case of the petitioning 
entity, the organizational hierarchy at the time the form 1-140 was filed fails to establish that the 
petitioner had the capability to support an employee operating in a primarily managerial or executive 
capacity. While the foreign entity's organizational chart names an office administrator, an office 
clerk, a general manager, a marketing manager, and a facilities manager, as well as various staff 
members to assist the managerial positions, the U.S. entity's organizational hierarchy consists of 
only two full-time employees, including the beneficiary and the company's vice president, and an 
office manager, who would perform administrative and clerical tasks. This assessment of the 
petitioner's organization casts further doubt on the reliability of the beneficiary's proposed job duties, 
which suggest the existence of an underlying management staff and other personnel to perform the 
functions that the beneficiary would purportedly oversee. It is further noted that, 
who is named as the petitioner's office manager, appears to be employed by - 
rather than by the petitioner, as indicated by the pay stub provided in support of the Form I- 140. 
The AAO must hrther address the hierarchy of the foreign entity, which as of yet remains 
undocumented. While the petitioner submitted the foreign entity's organizational chart, this 
document is not evidence that the individuals named therein were actually employed by the foreign 
entity. Rather, the organizational chart is merely part of the petitioner's claim, which must be 
corroborated with independent evidence. Going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm. 1972 While the petitioner provided a wage document showing its prior 
employment of )), the petitioner's current vice president, similar documentation was not 
provided with regard to any of the remaining employees. Counsel may argue that the petitioner 
satisfied the RFE's request by providing documentation to establish employment of the beneficiary's 
immediate subordinate. However, when asked how many employees the beneficiary supervised 
abroad, the petitioner listed nine subordinate staff members. As such, the petitioner must 
substantiate the claim that the foreign entity employed a subordinate staff capable of relieving the 
beneficiary from having to primarily perform non-qualifying tasks. Failure to do so leaves U. S. 
Citizenship and Immigration Services (USCIS) wondering who was performing daily operational 
tasks and how the beneficiary was relieved from having to do so. 
Next, counsel asserts that the beneficiary qualifies as a function manager. However, the record 
shows no basis for this assertion. The term "function manager" applies generally when a beneficiary 
does not supervise or control the work of a subordinate staff but instead is primarily responsible for 
managing an "essential function" within the organization. See section 101 (a)(44)(A)(ii) of the Act, 
8 U.S.C. 5 1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. 
If a petitioner claims that the beneficiary is managing an essential function, the petitioner must 
furnish a written job offer that clearly describes the duties to be performed, i.e., identify the function 
with specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. 8 C.F.R. 8 204.50')(5). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the 
beneficiary manages the function rather than performs the duties related to the function. As stated 
earlier, an employee who primarily performs the tasks necessary to produce a product or to provide 
services is not considered to be employed in a managerial or executive capacity. See sections 
101 (a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. at 604. In 
this matter, the petitioner has not specified the essential function managed abroad or the function to 
be managed within the U.S. entity. As properly pointed out by the director, merely stating that the 
Page 10 
beneficiary has managed and would manage a company in its entirety is not sufficient in establishing 
an essential function. Moreover, the petitioner has not provided detailed job descriptions of the 
beneficiary's foreign and proposed employment. 
Further, counsel disputes the director's reference to the petitioner as a small business and points out 
the considerable revenues generated and the numerous independent contractors it employs. Again, 
counsel's argument fails to overcome the grounds for denial. First, assuming a petitioning entity can 
establish the generation of considerable revenue, this factor is not relevant in establishing a 
company's need and ability to sustain an employee in a primarily managerial or executive capacity. 
Second, counsel's assertion that the petitioner has nine employees and utilizes the services of sixteen 
independent contractors has not been corroborated with supporting documentation. In the earlier 
discussion of the petitioner's personnel, the AAO found that insufficient evidence was submitted to 
corroborate the information conveyed in the organizational chart. Additionally, the various billing 
and price quotes showing the use of independent contractors name = 
rather than the petitioner as the party billed for the contractors' services. 
Particularly problematic is an invoice dated October 30, 2007 from - a 
general contractor for the Social Security Administration project. Not only did the invoice cite Isaac 
Organization as the party being billed for the general contracting services, but the invoice also 
named 
 (the beneficiary's alleged subordinate) as presidenUCE0. There is no evidence 
that the general contractor was employed by the petitioner. Moreover, the fact that someone other 
than the beneficiary is referenced by the beneficiary's position title causes the AAO to further 
question the beneficiary's position with the U.S. entity and the nature of the job duties that he would 
perform. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
In light of the above, the AAO concurs with the director's decision. The petitioner has provided 
inadequate job descriptions that fail to delineate the job duties performed abroad and the job duties 
to be performed with the U.S. entity. Moreover, the petitioner has failed to provide sufficient 
documentation establishing either entity's capability to sustain the beneficiary in a primarily 
managerial or executive capacity. On the basis of these findings the AAO concludes that the 
petitioner failed to establish that the beneficiary was employed abroad and would be employed by 
the U.S. petitioner in a qualifying managerial or executive capacity. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that 
were not previously addressed in the director's decision. Namely, 8 C.F.R. 8 204.5(j)(3)(i)(D) states 
that the petitioner must establish that it has been doing business for at least one year prior to filing 
the Form 1-140. The regulation at 8 C.F.R. 5 204.5(j)(2) states that doing business means "the regular, 
systematic, and continuous provision of goods andlor services by a firm, corporation, or other entity and 
does not include the mere presence of an agent or office." As the petitioner filed the Form 1-140 on July 
30, 2007, the relevant one-year time period is from August 1,-2006 through the date of filing. 
- - 
support of the Form 1-140, the petition& provided a leasing contract between- 
and entered into on December 23,2005. However, not only was this contract entered 
into outside the relevant time period, but it does not appear that the petitioner was a party to this leasing 
agreement. As such this document is irrelevant in the present proceeding. While the petitioner 
Page 11 
provided additional documents in response to the RFE, none named the petitioner as a party to any of 
the transactions. Although the petitioner provided its tax return for 2006, a tax return does not show 
the frequency of the petitioner's business transactions and therefore cannot be relied upon to 
determine whether an entity is conducting business on a "regular, systematic, and continuous" basis. 
See id. In light of the lack of sufficient documentation, the AAO cannot conclude that the petitioner has 
met the regulatory requirement cited at 8 C.F.R. 5 204.50)(3)(i)(D). 
Lastly, despite the director's finding that the petitioner has established its ability to pay the beneficiary's 
proffered wage, the AAO's review of the record shows no basis for this finding. The regulation at 8 
C.F.R. 5 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. 
 Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be in the form of copies of annual 
reports, federal tax returns, or audited financial statements. 
Although the petitioner complied with the director's request for its 2006 tax return, the AAO notes that 
the petitioner must establish its eligibility at the time of filing, which took place in July 2007. See 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Regardless, the submitted tax return does 
not establish the petitioner's ability to pay the beneficiary's proffered wage of $90,000 annually. 
In determining the petitioner's ability to pay the proffered wage, USCIS will first examine whether the 
petitioner employed the beneficiary at the time the priority date was established. If the petitioner 
establishes by documentary evidence that it employed the beneficiary at a salary equal to or greater than 
the proffered wage, this evidence will be considered prima facie proof of the petitioner's ability to pay 
the beneficiary's salary. In the present matter, the petitioner claims that it has employed the beneficiary 
since prior to the filing of the Form 1-140. However, there is no indication that the beneficiary has been 
paid a salary equal to or greater than the proffered wage. While the petitioner provided evidence 
establishing that it paid wages to the beneficiary's subordinate in 2005 and 2006, there is no evidence of 
wages paid to the beneficiary. 
As an alternate means of determining the petitioner's ability to pay, the AAO will next examine the 
petitioner's net income figure as reflected on the federal income tax return, without consideration of 
depreciation or other expenses. If the net income the petitioner demonstrates it had available during 
the pertinent period added to the wages paid to the beneficiary during the period do not equal the 
amount of the proffered wage or more, USCIS will review the petitioner's assets. We reject, 
however, the idea that the petitioner's total assets should have been considered in the determination 
of the ability to pay the proffered wage. The petitioner's total assets include depreciable assets that 
the petitioner uses in its business. Those depreciable assets will not be converted to cash during the 
ordinary course of business and will not, therefore, become funds available to pay the proffered 
wage. Further, the petitioner's total assets must be balanced by the petitioner's liabilities. 
Otherwise, they cannot properly be considered in the determination of the petitioner's ability to pay 
Page 12 
the proffered wage. Rather, USCIS will consider net current assets as an alternative method of 
demonstrating the ability to pay the proffered wage. 
Net current assets are the difference between the petitioner's current assets and current liabilities. A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end 
current liabilities are shown on lines 16 through 18. If the total of a corporation's end-of-year net 
current assets and the wages paid to the beneficiary (if any) are equal to or greater than the proffered 
wage, the petitioner is expected to be able to pay the proffered wage using those net current assets. 
The petitioner's net current assets in 2006 amounted to $40,455. Even if the petitioner's current 
assets were added to the $23,089 in taxable income, as shown on the first page of the tax return, the 
total of $63,544 falls far short of the proffered wage. Regardless, the record lacks documentation 
reflecting the petitioner's income during the relevant time period. As such, the AAO cannot 
conclude that the petitioner had the ability to pay that is required by regulation. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), afd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
grounds of ineligibility discussed above, this petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 
345 F.3d 683. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 4 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.